PropertyProf Blog

Monday, December 14, 2015

Korngold et al. on Modification and Termination of Conservation Easements

Gerald Korngold (New York Law School), Semida Munteanu (Lincoln Institute), and Lauren E. Smith (Independent) have posted An Empirical Study of Modification and Termination of Conservation Easements: What the Data Suggest About Appropriate Legal Rules (NYU Environmental Law Journal) on SSRN. Here's the abstract:

The acquisition of conservation easements by nonprofit organizations (“NPOs”) over the past twenty-five years has revolutionized the preservation of American land. Recently, however, legislatures, courts, practitioners, and commentators have debated whether and how conservation easements should be modified and even terminated. The discussion has almost always been on a theoretical level without empirical grounding and has sometimes generated much heat but little light. The discussion has lacked the necessary empirical context to allow legislatures and courts to thoughtfully develop resolutions to these issues free from sloganeering and posturing.

This article provides and analyzes a previously uncollected dataset that offers guidance on the appropriate rules of law for conservation easement modification. It examines policy goals in light of the data to suggest various modification rules that would be more effective than current practice. The dataset represents a significant sample of easement modifications that have been made during a six year period (2008-2013) and indicates several findings: first, modifications have actually been taking place, despite claims that conservation easements are “perpetual,” apparently indicating that NPOs need flexibility in at least some areas; most of the changes have been “minor” and have been either conservation neutral or conservation positive, though one would expect pressure for more significant alterations over time due to shifts in the environment and human needs; there is a range of types and degree of modifications to this point, suggesting that there should be a spectrum of procedural and substantive requirements for the different varieties of modifications; and, a mandate for a stand-alone, state registry of conservation easements and modifications would allow for improved policymaking.

The article suggests that a doctrine that requires different procedures and substantive rules for various categories of modifications — a sliding scale — may yield the best, policy-based results. The work also identifies and analyzes existing doctrines — federal tax law, specific state statutes, charitable trust doctrine, standing rules, and director liability — that would need to be altered or clarified to adopt effective modification rules.

December 14, 2015 | Permalink | Comments (0)

Wednesday, December 9, 2015

Most Cited Property Law Professors, 2011-2015

By Steve Clowney

It’s been five years since anyone has bothered to put together a list of the “most-cited” property scholars (for the last attempt in 2010, see here). Since one of the goals of this site is to identify property people who are doing great work, the end of 2015 seems like a good time for an update.

The methodology behind this citation count is simple and follows previous studies of “scholarly impact.” To start, I pulled the names of all the property professors working at the top 50 schools (according to Brian Leiter’s 2012 faculty productivity ranking). I then combed through old AALS & ALPS programs looking for productive scholars outside the top schools. This resulted in a list of approximately 140 academics who have recently written about property issues.

For each name, I searched the Westlaw journals database for "citations" as follows: (robert /2 ellickson) & DA(aft 12-31-2010). I then rounded the numbers to the nearest ten. All searches were conducted in mid-December of 2015.

As other have pointed out, this approach has obvious weaknesses. Foremost, a “citation” for the purpose of this ranking is simply an article that mentions the scholar—it does not capture how many times a scholar is cited within each piece or why a scholar is being cited. Additionally, this method doesn’t capture citations in books or in disciplines not included in Westlaw’s databases. Finally, this method of counting citations can generate false positives for anyone with a common name. To ensure that I wasn’t getting an avalanche of false positives, I conducted an additional search using everyone’s “writing name” ((“robert c. ellickson”) & DA(aft 12-31-2010)) and made adjustments when there were wide discrepancies between the two.

To stay on all fours with previous studies, the lists below reproduce the age of each faculty member as a rough proxy for time spent in the academy. Unsurprisingly, very senior faculty members dominate the ranking. To shed some light on the good works of a less experienced crew, I generated a separate list of most-cited faculty under 50.

Some caveats:

(1) Although I tried to be careful, I’m sure I’ve left someone off of the list. Feel free to e-mail me if you see an obvious goof or omission. Apologies in advance.

(2) The ages listed here are only approximations. I calculated most of them based on the year of college graduation listed on the individual’s CV. If I’ve butchered your date of birth, I’ll buy you a drink at the property conference of your choice.

(3) It many cases it was terribly difficult to decide whether or not an individual counted as “a property person.” For example, should I have included Joe Sax, Jeremy Waldron, or Judge Posner on one of the lists? Probably? Maybe? The decisions ultimately reflect my own biases, but were made by looking at a scholar’s recent publications, most-cited publications, and whether or not they self-identify as a property person. The two toughest decisions were including Margaret Jane Radin on the “property roll” (her most cited works remain a triumvirate of great property articles) and pushing Tom Merrill into the “property + other stuff” pile (although he’s one of the greatest living property theorists, he’s actually more cited for his administrative law stuff).

Again, I'm sure I've made some embarrassing mistakes here. I'm more than happy to receive your comments, concerns, or scathing criticisms.

Yasher koach to all of the faculty listed below!

Most Cited Property Scholars, 2011-2015
Rank	Name	Institution	Citations	Age in 2015
1	Henry Smith	Harvard	720	50
2	Margaret Jane Radin	Michigan	710	74
3	Robert Ellickson	Yale	700	74
4	Carol Rose	Arizona	680	75
5	Gideon Parchomovsky	Penn	620	47
6	Joseph Singer	Harvard	590	61
7	Michael Heller	Columbia	510	53
8	Lior Strahilevitz	Chicago	440	42
9	Vicki Been	NYU	430	59
10	Stewart Sterk	Cardozo	400	65
11	Lee Fennell	Chicago	380	49
12	Stuart Banner	UCLA	370	53
13	Gregory Alexander	Cornell	360	68
14	Eduardo Peñalver	Cornell	310	44
15	Nestor Davidson	Fordham	280	48

Highly cited scholars who work partly in property, 2011-2015
Rank	Name	Institution	Citations	Age in 2015
1	Richard Epstein	NYU	2490	72
2	Thomas Merrill	Columbia	1550	66
3	Ilya Somin	George Mason	630	42
4	Frank Michelman	Harvard	590	79
5	Dan Tarlock	Chicago-Kent	430	76
6	Hanoch Dagan	Tel Aviv	360	52
7	Barton Thompson	Stanford	360	66
8	Roderick Hills	NYU	350	51
9	Andrew Morriss	Texas A&M	350	57
10	David Dana	Northwestern	330	50

Most Cited Property Scholars Under 50, 2011-2015
Rank	Name	Institution	Citations	Age in 2015
1	Gideon Parchomovsky	Penn	620	47
2	Lior Strahilevitz	Chicago	440	42
3	Lee Fennell	Chicago	380	49
4	Eduardo Penalver	Cornell	310	44
5	Nestor Davidson	Fordham	280	48
6	Abraham Bell	San Diego	240	49
7	Jedediah Purdy	Duke	210	41
8	Al Brophy	North Carolina	200	49
8	Eric Claeys	George Mason	200	49
10	Nicole Garnett	Notre Dame	190	46
11	Rose Villazor	U.C. Davis	180	42
12	Christopher Serkin	Vanderbilt	170	45
13	Stephanie Stern	Chicago-Kent	150	42
14	Bethany Berger	UConn	140	47
15	Benjamin Barros	Toledo	120	47
15	Kristen Carpenter	Colorado	120	44
15	Sara Bronin	UConn	120	37

The All-time Most Cited Articles of the Most Cited Scholars
Rank	Name	Most Cited Property Articles
1	Henry Smith	Optimal Standardization in the Law of Property, What Happened to Property in Law and Economics, The Property/Contract Interface, Property and Property Rules
2	Margaret Jane Radin	Market-Inalienability, Property and Personhood, The liberal Conception of Property, The Myth of Private Ordering
3	Robert Ellickson	Property in Land, Suburban Growth Controls, Cities and Homeowners Associations, Of Coase and Cattle, Law and Economics Discovers Social Norms, Controlling Chronic Misconduct in City Spaces
4	Carol Rose	Crystals and Mud in Property Law, The Comedy of the Commons, Mahon Reconstructed, Possession as the Origin of Property, The Several Future of Property, Piecemeal Land Controls as a Problem of Local Legitimacy, Management Strategies for Common Resources
5	Gideon Parchomovsky	Givings, A Theory of Property, Pliability Rules
6	Joseph Singer	The Reliance Interest in Property, No Right to Exclude, Sovereignty and Property
7	Michael Heller	The Tragedy of the Anticommons, The Boundaries of Private Property
8	Lior Strahilevitz	The Right to Destroy, How Changes in Property Regimes Influence Social Norms, Information Asymmetries and the Rights to Exclude
9	Vicki Been	“Exit” as a Constraint on Land Use Exactions, Environmental Justice and the Siting of Locally Undesirable Land Uses, Locally Undesirable Land Uses In Minority Neighborhoods
10	Stewart Sterk	Neighbors in American Land Law, The Enduring Value of Servitude Restrictions
11	Lee Fennell	Taking Eminent Domain Apart, Common Interest Tragedies
12	Stuart Banner	Law and Space in Nineteenth-Century New Zealand
13	Gregory Alexander	The Social-Obligation Norm in American Property Law, Residential Associations and Community, Freedom, Coercion and the Law of Servitudes
14	Eduardo Peñalver	Land Virtues, Property Outlaws, Property as Entrance
15	Nestor Davidson	Standardization and Pluralism in Property Law, The Problem of Equality in Takings

December 9, 2015 | Permalink | Comments (1)

Monday, December 7, 2015

Who Owns Sunken Treasure

By Steve Clowney

The New York Times had a recent piece on the legal morass that surrounds the ownership of sunken ships:

The Spanish galleon San José was overloaded with 200 passengers and 700 tons of cargo on a summer night in 1631 when it smashed into a rock off the Pacific coast of Panama, spilling silver coins and bars into the Gulf of Panama. More than 400,000 coins and at least 1,417 bars were lost over a 40-mile trail.

Four hundred years later, that shipwreck has become one of the latest to land in a legal quagmire over who should have the rights to historic artifacts trapped under the sea. This one involves the United Nations, the United States Department of Homeland Security, the government of Panama and Americans accused of being pirates.

At issue is whether private companies should be able to claim and profit from historic treasures. Those questions are of particular interest to businesses in South Florida at a time when technology is making it easier to find and recover sunken loot. The National Oceanic and Atmospheric Administration estimates that there are over 1,000 shipwrecks in the Florida Keys alone.

[T]he industry is engaged in a battle with academic marine archaeologists and Unesco, the Paris-based United Nations agency that tries to protect cultural treasures around the world. Critics say buried coins and loot should be studied and preserved in a museum, not sported around an investor’s neck.

December 7, 2015 | Permalink | Comments (0)

Salkin on Recent Developments in Land Use Ethics

By Steve Clowney

Patricia Salkin (Touro) has posted Recent Developments in Land Use Ethics (Urban Lawyer) on SSRN. Here's the abstract:

Current events across the country reveal no shortage of allegations of unethical conduct in the land use review process. Sadly, there are countless other media accounts of alleged and proven conflicts of interest and other ethical misconduct. In this annual review of reported decisions involving ethics in land use, recent decisions are discussed in the hopes that municipal attorneys will use this information as the basis of ongoing training for members of planning boards, zoning boards, and local legislative bodies who must be routinely reminded of not only their legal but ethical responsibilities in upholding the public trust.

December 7, 2015 | Permalink | Comments (0)

MacDonnell on Prior Appropriation Doctrine

By Steve Clowney

Lawrence MacDonnell (Wyoming) has posted Prior Appropriation: A Reassessment (Water Law Review) on SSRN. Here's the abstract:

This paper provides an overview of the literature critiquing the Prior Appropriation Doctrine, examines the historical evolution of the doctrine, and offers recommendations for modernizing its major concepts.

December 7, 2015 | Permalink | Comments (0)

Friday, December 4, 2015

Lawton on Affordable Housing in Poland

By Steve Clowney

Julie Lawton (DePaul) has posted Warsaw Rebuilt: Incorporating Affordable Housing by Design (Warsaw Law Review) on SSRN. Here's the abstract:

There is little credible argument against the need for affordable housing throughout the world. In many countries, the poor struggle to find structurally sound housing that is safe, affordable and in a desirable location. Those countries that seek to build affordable housing struggle with forced integration of existing neighborhoods, struggle against preexisting social structures that are not supportive of the poor, and struggle against established cultural traditions that resist the changes that are required to expand affordable housing. However, when a society has the opportunity to build a new city, will affordable housing be incorporated in the design? Will the redesign of this new city create the same wealth segregation, economic structures, and preexisting conditions that ultimately lead to the need for affordable housing, or will this new city be designed to incorporate affordable housing as an integral part? This Article offers a short examination of Warsaw, Poland, a city utterly destroyed by the Germans in World War II and later occupied by the Soviet Union. Warsaw, after the fall of the Soviet Union, is quickly rebuilding and has the opportunity to design the city to incorporate affordable housing as a central and permanent part of the city and to create a mixed-income society where all residents have a place. Part I of this Article provides an overview of the global need for affordable housing. Part II provides a brief summary of a portion of Warsaw’s history that precipitated its destruction. Part III discusses Warsaw’s current redevelopment. Part IV offers a framework for Warsaw to rebuild its city by integrating affordable housing into the city’s redevelopment.

December 4, 2015 | Permalink | Comments (0)

Schleicher & Hills on Housing Affordability

By Steve Clowney

David Schleicher (Yale) and Rick Hills (NYU) have posted Planning an Affordable City (Iowa Law Review) on SSRN. Here's the abstract:

In many of the biggest and richest cities in America, there is a housing affordability crisis. Housing prices in these cities have appreciated well beyond the cost of construction and even faster than rising incomes. These price increases are a direct result of zoning rules that limit the ability of new supply to meet rising demand. The high cost of housing imposes a heavy burden on poorer and younger residents and, by forcing residents away from these human capital rich areas, has even reduced regional and national economic growth. While scholars have done a great deal to identify the problem, solutions are hard to come by, particularly given the strong influence of neighborhood “NIMBY” groups in the land-use process that resist any relaxation of zoning limits on housing supply.

In this Article, we argue that binding and comprehensive urban planning, one of the most criticized ideas in land-use law, could be part of an antidote for regulatory barriers strangling our housing supply. In the middle of the last century, several prominent scholars argued that courts should find zoning amendments that were contrary to city plans ultra vires. This idea was, however, largely rejected by courts and scholars alike, with leading academic figures arguing that parcel-specific zoning amendments, or “deals,” provide space for the give-and-take of democracy and lead to an efficient amount of development by encouraging negotiations between developers and residents regarding externalities from new building projects.

We argue, by contrast, that the dismissal of plans contributed to the excessive strictness of zoning in our richest and most productive cities and regions. In contrast with both planning’s critics and supporters, we argue that plans and comprehensive remappings are best understood as citywide deals that promote housing. Plans and remappings facilitate trades between city councilmembers who understand the need for new development but refuse to have their neighborhoods be dumping grounds for all new construction. Further, by setting forth what can be constructed as of right, plans reduce the information costs borne by purchasers of land and developers, broadening the market for new construction. We argue that land-use law should embrace binding plans that package together policies and sets of zoning changes in a number of neighborhoods simultaneously, making such packages difficult to unwind. The ironic result of such greater centralization of land-use procedure will be more liberal land-use law and lower housing prices.

December 4, 2015 | Permalink | Comments (0)

Thursday, December 3, 2015

Map of the Day: Mass Shootings in 2015

By Steve Clowney

Interactive map here.

December 3, 2015 | Permalink | Comments (0)

NYU Furman Center Job Opportunity

By Steve Clowney

NYU Furman Center Job Opportunity

Legal Research Fellowship

The Furman Center for Real Estate and Urban Policy at New York University invites applications for a post-graduate legal fellowship. The Furman Center, jointly housed at NYU’s School of Law and its Wagner Graduate School of Public Service, is a leading academic research center devoted to the public policy aspects of land use, real estate development, and housing. The Furman Center’s law fellowships are designed for promising legal scholars with a strong interest in housing, local government, real estate, or land use law. The Fellow’s time is shared equally between independent research on topics of his or her choice and preparation to enter the academic job market, and Furman Center research projects, conducted jointly with faculty members, graduate students, and staff. In recent years, legal fellows have worked on projects addressing the legal impediments to the development of micro and accessory dwelling units in New York and other cities; an empirical and legal analysis of the use of transferable development rights in New York City; the economics and legal issues surrounding mandatory inclusionary zoning; and a number of projects addressing fair housing law. The Fellow also helps produce the Center’s annual State of New York City’s Housing and Neighborhoods report. The Law Fellow is invited to participate in faculty workshops, colloquia, and other scholarly forums at the NYU School of Law, and will have the opportunity to work with NYU law school professors and particularly with those who serve on the Center’s Advisory Committee. This two-year fellowship typically begins summer/fall. The position comes with a salary and generous benefits.

Qualifications

A J.D. degree, superior academic achievement, excellent writing skills, initiative, and a demonstrated interest in and commitment to scholarship are required.

To Apply

Applicants should submit a cover letter, curriculum vitae, scholarly writing sample, and the names and contact information of 3 references. Application materials and questions should be sent to [email protected]. Please include “Legal Research Fellowship” in the subject line. Applications will be given consideration until the position is filled. Review of applications will begin immediately and will be evaluated on a rolling basis. Only candidates of interest will be contacted.

New York University is an Equal Opportunity/Affirmative Action Employer.